Freeman v. Michigan Dept. of State

• Decision Date: 08 January 1987
• Docket Number: No. 85-1878,85-1878
• Citation: 808 F.2d 1174
• Parties: 42 Fair Empl.Prac.Cas. 1090, 42 Empl. Prac. Dec. P 36,905 Annie L. FREEMAN, Plaintiff-Appellant, v. MICHIGAN, DEPARTMENT OF STATE, Department of Civil Service, Richard H. Austin, Secretary of State, In His Official Capacity Only, Frank Sierawski, In His Official Capacity Only, Jointly and Severally, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1174

808 F.2d 1174

42 Fair Empl.Prac.Cas. 1090,

42 Empl. Prac. Dec. P 36,905

Annie L. FREEMAN, Plaintiff-Appellant, v. MICHIGAN, DEPARTMENT OF STATE, Department of Civil Service Richard H. Austin, Secretary of State, In His Official Capacity Only, Frank Sierawski, In His Official Capacity Only, Jointly and Severally, Defendants-Appellees.

No. 85-1878.

United States Court of Appeals Sixth Circuit.

Argued Nov. 6, 1986.

Decided Jan. 8, 1987.

Chui Karega (argued), Detroit, Mich., for plaintiff-appellant.

Richard P. Gartner, Asst. Atty. Gen. (argued), Lansing, Mich., for defendants-appellees.

Before LIVELY, Chief Judge, and MARTIN and BOGGS, Circuit Judges.

LIVELY, Chief Judge.

The question in this case is whether the Eleventh Amendment bars an action by a state employee seeking damages and injunctive relief from the State, a state agency and two state officials. The district court dismissed the entire action on Eleventh Amendment grounds and imposed a sanction pursuant to Rule 11, Fed.R.Civ.P., on the plaintiff and her attorney. We reverse.

I.

The plaintiff is a black woman who has worked as a secretary to a bureau head within the Michigan Department of State Bureau of Civil Services. In her complaint she stated that she was the only black secretary of seven persons with similar positions (secretary to a bureau head) and that she received a lower job classification than any of the other six. The complaint contains three counts. In the first count the plaintiff sought an injunction, back pay and front pay, attorney fees and costs, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e, et seq. In the second count the plaintiff sought the same relief pursuant to 42 U.S.C. Sec. 1981, and in the third count she stated a pendent claim under a civil rights statute and the Constitution of Michigan.

The defendants filed a motion to dismiss pursuant to Rule 12(b)(1) and (6), Fed.R.Civ.P., for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. The stated bases for the motion to dismiss the Title VII claim were the Eleventh Amendment, the plaintiff's alleged failure to bring the action within 90 days after receiving a right-to-sue letter from the Equal Employment Opportunity Commission (EEOC), and her failure to file a charge within 300 days of the alleged act of discrimination. The latter two arguments were grounded on requirements contained in 42 U.S.C. Sec. 2000e-5. The motion sought dismissal of the Sec. 1981 claim for failure to bring the action within the three-year limitation period prescribed by a Michigan statute and "because a violation of 42 U.S.C. Sec. 1981 may not be asserted as the basis for an action under Title VII." Finally, the defendants maintained that upon dismissal of the federal claims the state law claims would no longer be pendent.

The plaintiff responded promptly to the motion, denying that her action was barred by the Eleventh Amendment, stating that it was filed within 90 days following receipt of a right-to-sue letter, and alleging that the defendants had engaged in continuing acts of discrimination since 1978, making her Sec. 1981 and state law claims timely. The plaintiff accompanied her response with an affidavit in which she set forth specific facts in support of her claim that her action was timely under the requirements of Title VII and the Michigan statute of limitations. The plaintiff's attorney also filed a memorandum of law in support of the response.

Fourteen days after the plaintiff's response was filed the district court entered an order dismissing the action solely on Eleventh Amendment grounds, making no distinction between the Title VII and Sec. 1981 claims. In addition, the order provided:

In view of the fact that Plaintiff elected to institute her lawsuit in federal court, a forum which clearly was improper under a myriad of United States Supreme Court cases, the Court, pursuant to Fed.R.Civ.P. 11, imposes costs in the amount of $500 against Plaintiff and her attorney in favor of Defendant. Unless Plaintiff pays the foregoing costs, she is enjoined from instituting a lawsuit against Defendants in a Michigan Court.

(Footnote omitted).

II.

The Eleventh Amendment states: "The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." The Supreme Court has treated this amendment as an affirmation of the sovereign immunity of the states and has interpreted it to prohibit a federal court action against a state by its own citizens as well as by citizens of other states. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). However, Congress may remove this immunity by acting under Sec. 5 of the Fourteenth Amendment which provides, "the Congress shall have power to enforce, by appropriate legislation, the provisions of this article." When Congress specifically relies on the enforcement section of the Fourteenth Amendment in creating a cause of action against the states, it abrogates their immunity from suit in federal court and removes the Eleventh Amendment limitation on the judicial power of the United States.

Neither the district court in its order, nor the parties in their motions, responses or briefs in the trial court, referred to Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). In Fitzpatrick the Supreme Court held that Congress acted under Sec. 5 of the Fourteenth Amendment in enacting the 1972 amendments to Title VII. One of the effects of the 1972 amendments was to include states and political subdivisions within the definition of "employer" for purposes of Title VII. In holding that the Eleventh Amendment does not preclude a federal court action against a state under Title VII the Court stated:

When Congress acts pursuant to Sec. 5, not only is it exercising legislative authority that is plenary within the terms of the constitutional grant, it is exercising that authority under one section of a constitutional Amendment whose other sections by their own terms embody limitations on state authority. We think that Congress may, in determining what is "appropriate legislation" for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts. See Edelman v. Jordan, 415 U.S. 651 [94 S.Ct. 1347, 39 L.Ed.2d 662] (1974); Ford Motor Co. v. Department of Treasury, 323 U.S. 459 [65 S.Ct. 347, 89 L.Ed. 389] (1945).

427 U.S. at 456, 96 S.Ct. at 2671 (footnote omitted). The district court erred in holding that the Eleventh Amendment deprived it of subject matter jurisdiction to hear plaintiff's Title VII claim.

The defendants concede in this court that the district court erroneously dismissed the Title VII claim on Eleventh Amendment grounds, but argue that we should affirm the dismissal because it was proper on other grounds. The defendants contend that the Title VII action was subject to dismissal because the plaintiffs did not comply with the requirement of 42 U.S.C. Sec. 2000e-5(f) that the claim must be filed within 90 days of the receipt of the right-to-sue letter from the EEOC. However, the complaint stated, "This action has been brought within ninety (90) days of the receipte (sic) of the Notice of Right to Sue...." A motion to dismiss for failure to state a claim admits all well-pled facts and "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957) (footnote omitted). In addition to pleading compliance with the 90-day provision of Title VII, the plaintiff filed an affidavit setting forth the precise date she claimed the right-to-sue letter was received, a date within 90 days of the filing of the complaint.

The defendants also contend that dismissal of the action should be upheld because the plaintiff failed to file a charge within the prescribed state agency within the 300-day limit set forth in 42 U.S.C. Sec. 2000e-5(e). This argument has no merit. When the defendants raised the 300-day issue in their unsworn motion to dismiss, the plaintiff immediately responded with an affidavit enlarging on the statement in her complaint that when she inquired about her status she was advised that her job had not been "bench marked" and was under study. The affidavit stated that the plaintiff learned of her lower classification in March 1984 and filed her complaint on April 19, 1984. As with the 90-day notice requirement, it cannot be said that the plaintiff could have proved no set of facts with respect to the 300-day filing requirement under which she could prevail. In short, the Title VII claim was not subject to dismissal under Rule 12(b) either for lack of subject matter jurisdiction or for failure to state a claim.

III.

The Supreme Court has not ruled on the question of whether the Eleventh Amendment prohibits relief against a state under 42 U.S.C. Sec. 1981. However, several courts of appeals, including this court, have held that an action may not be brought against a state pursuant to this statute. In Sessions v. Rusk State Hospital, 648 F.2d 1066, 1069 (5th Cir.1981), the court concluded that a district court erroneously denied a state defendant's motion to dismiss a Sec. 1981 claim, stating:

Unlike Title VII, Section 1981 contains no congressional waiver of the state's eleventh amendment immunity. This indicates that Congress did not intend by the general language of the Civil Rights Act of 1871 to invoke its fourteenth amendment power.

(Citations omitted). The court reached the same conclusion in Rucker v. Higher...